Drawing here on Jill Lepore's "These Truths: A history of the United States," know that gun safety legislation was widespread in the early 19th Century. Carrying concealed weapons was outlawed in Kentucky and Louisiana (yes) in 1813, and by numerous other states by 1859 including Texas, Indiana, Oklahoma, Alabama and Tennessee. In western cities and towns, sheriffs routinely confiscated the guns of visitors. This was completely normal and subject to no constitutional challenge whatever.
The National Rifle Association likes to represent itself as America's oldest civil rights organization, but that is complete bullshit. The NRA at its founding and long thereafter had no interest in civil rights. It was founded in 1871 as a sporting and hunting association, and its main activity was sponsoring target shooting contests. It supported and even sponsored gun safety legislation. The NRA supported the 1934 National Firearms Act and the 1938 Federal Firearms Act, which between them effectively outlawed automatic weapons, required licensing of gun dealers, established a waiting period for purchase of handguns. The Supreme Court unanimously upheld these measures in 1939, the Solicitor General arguing that the Second Amendment right "is not one which can be used for private purposes, but only one which exists where the arms are borne in the militia or some other military organization provided for by law and intended for the protection of the state." Well duhh, that's what it literally says.
The NRA supported a ban on mail order gun sales in 1963, and supported the 1968 Gun Control Act. Ronald Reagan supported gun control legislation as governor of California, and Richard Nixon did so as president, saying "I don't know why any individual should have a right to have a revolver in his house." The idea that the Second Amendment pertains to an individual right to carry a gun became the position of the NRA only in the 1970s, and endorsed Ronald Reagan, who thereupon changed his position on gun control. The campaign to reinterpret the Second Amendment began after that. So this whole concept of gun rights is a fairly recent issue. Let's just keep that in mind.
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What you say, estemado Cervantes, is true but incomplete.
To begin with, the bans on concealed carry were targeted at gamblers, pimps and other associated low-lifes. This happened in an environment in which open carry was acceptable and fully supported by law. While most states did not go so far as to ban concealed carry it was considered a sign of ill intent. Concealed carry as we now know it (with licensing, training, and criminal background checks) is a direct product of america's urbanization in the pre-war years. Open carry became associated with roughneck bumpkins and was eventually banned in most states. Enter concealed carry in response to the violent crime wave of the post-war years.
Further, whatever claims the NRA makes about its lineage, the current focus begins with the 1977 convention, called the "revolt at Cincinnati" which was in turn a grassroots response to NRA support for the very gun laws you name. Again, this takes place in the context of the post-war violent crime wave. As with so many surprises in american politics this is a case of elite management discovering just how much they are despised by the rank and file. While the current situation is one of corrupt rentier behavior by a gun industry lobby, that's not how it began.
Lastly, and most importantly, the 2A inhabits the same real estate as the other "first eight" amendments: originally protecting not one individual right and acquiring such meaning in the "due process revolution"of the 14A. As ratified in 1791 the bill of rights applied only to the federal congress, permitting the states to carry on disarming entire classes, carrying out warrantless searches, and imposing religious tests for office. It is entirely thanks to John Bingham that these "rights" are now held against the states. In the case of the 2A he was explicit in making it a wholly individual right (so that freed blacks could defend themselves against lynching parties) and that effect was fully understood by the congressional committee which passed the 14A on for ratification. That SCOTUS, an extremely conservative (in both senses) institution took so long to include the 2A in such understanding is entirely political.
It is most certainly true that the Bill of Rights did not extend to the states until the 14th Amendment. I don't know about John Bingham, but it wasn't for another century that people generally got the idea to construe the Second Amendment as an individual right. That Black people might defend themselves against lynching parties with firearms is, obviously, preposterous, and I'm quite sure it never happened.
It is historically indisputable that the amendment pertained to the maintenance of state-sponsored militias, which were mostly engaged in capturing runaway slaves and defending against or murdering native people; and was also in part inspired by resistance to the idea of a federal standing army. The plain language of the Amendment makes that completely obvious. The militias are now the National Guard. As you know nowadays open carry applies only to white people; Black people who open carry will be murdered by the police, even a 12 year old boy with a toy gun.
It's very disputable that 2A only pertained to state-sponsored militia. The citizen-organized militia were very much a fact. Even the SCOTUS realized that and mentioned it in the "Heller" case in 2008.
What do you know that historians and Supreme Court Justices don't?
I've carried for years, but always concealed. I look at it like life or health insurance. You hope you never need it... and you don't need it...until you need it!
I don't hunt because I don't like killing anything. I won't even step on a spider. I think having to use a weapon to save myself or others would destroy me. It would be a terrible choice to have to make.
That's the whole point. Heller overturned centuries of 2d Amendment Jurisprudence. This is from the Cornell Law school information institute:
On the one hand, some believe that the Amendment's phrase "the right of the people to keep and bear Arms" creates an individual constitutional right for citizens of the United States. Under this "individual right theory," the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and restrictive regulation presumptively unconstitutional. On the other hand, some scholars point to the prefatory language "a well regulated Militia" to argue that the Framers intended only to restrict Congress from legislating away a state's right to self-defense. Scholars have come to call this theory "the collective rights theory." A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right.
In 1939 the U.S. Supreme Court considered the matter in United States v. Miller. 307 U.S. 174. The Court adopted a collective rights approach in this case, determining that Congress could regulate a sawed-off shotgun that had moved in interstate commerce under the National Firearms Act of 1934 because the evidence did not suggest that the shotgun "has some reasonable relationship to the preservation or efficiency of a well regulated milita . . . ." The Court then explained that the Framers included the Second Amendment to ensure the effectiveness of the military.
Oh, and BTW most states today outlaw private militias. I'm unaware of any 2A objection to that.
Well, the data are clear, I'm afraid. You're much more likely to use it to kill yourself, or shoot somebody accidentally, than to use it in self-defense. Just a fact.
1. The constitution refers to two seperate militias, the first being the Art 1 militia, which congress is required to support. These were armed and officered by the states, with arms being kept in armories. This is what has evolved into the national guard. The second is the 2A militia, organized by towns, with individuals supplying their own arms and voting for their officers. These evolved into sheriffs' posses in the american west. Given that Art 1 was ratified in 1788 but the 2A in 1791 it makes no sense that they would address the same matter, especially since congress abolished southern state militias in 1866.
2. Every holding in which SCOTUS applied the due process clause overturned decades of jurisprudence, because SCOTUS has rarely been comfortable with the idea of individual rights in the first place. It wasn't until Gitlow v New York (1925) that SCOTUS started looking at incorporation. You, estemado Cervantes, know as well as I that saying "a century of jurisprudence" in a debate like this is a particularly bad appeal to authority.
3. There is a substantial record of black militias successfully chasing off lynch mobs during the reconstruction period. This happened in Jacksonville, FL, Paducah, KY, and Brazos, TX, to name just a few. This went on until SCOTUS got its reactionary hands on the matter and found the 14A didn't mean what it plainly said.
4. According to the DOJ-BJS National Crime Victimization Survey, defensive gun uses runs ~65,000 incidents per year. That's not Gary Kleck or John Lott's bullshit, it's the largest and most comprehensive database of crime statistics in america.
You're an educated and intelligent man, Cervantes; I'm surprised at such a sweeping dismissal without even cursory research. John Bingham wrote the due process clause with the 2A (among others) specifically in mind. John Howard specified the "first eight" as personal rights to be held against the states under the 14A when introducing it. These are facts of the historical record.
Mo, in the first place I don't think you read carefully. I am well aware that militias were organized locally in colonial and early federal times. However, these were condoned by the states and the states didn't have to endorse any particular one. The intended meaning of the Second Amendment is, obviously, disputed, but the history of SC jurisprudence is as I said. I certainly agree that the courts can change their opinion -- and I am glad, for example, that Brown v Board of Education overturned Plessy v. Ferguson. I am not appealing to authority by pointing out that Heller reversed earlier rulings, I'm just stating a fact. The justices can do that if they wish, but I an think they were wrong. Here is a lengthy discussion, which I will excerpt:
The Supreme Court makes the ultimate determination of the Constitution's meaning, and it has defined the amendment as simply granting to the states the right to maintain a militia separate from federally controlled militias. This interpretation first came in United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1875). In Cruikshank, approximately one hundred persons were tried jointly in a Louisiana federal court with felonies in connection with an April 13, 1873, assault on two African–American men. One of the criminal counts charged that the mob intended to hinder the right of the two men to bear arms. The defendants were convicted by a jury, but the circuit court arrested the judgment, effectively overturning the verdict. In affirming that decision, the Supreme Court declared that "the second amendment means no more than that [the right to bear arms] shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government."
Continued:
In Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 (1886), Herman Presser was charged in Illinois state court with parading and drilling an unauthorized militia in the streets of Chicago in December 1879, in violation of certain sections of the Illinois Military Code. One of the sections in question prohibited the organization, drilling, operation, and parading of militias other than U.S. troops or the regular organized volunteer militia of the state. Presser was tried by the judge, convicted, and ordered to pay a fine of $10.
Read more: Second Amendment - Private Militias, Further Readings - Court, Arms, Bear, and Firearms - JRank Articles https://law.jrank.org/pages/10069/Second-Amendment.html#ixzz6q7n5PDYh
On appeal to the U.S. Supreme Court, Presser argued, in part, that the charges violated his Second Amendment right to bear arms. The Court disagreed and upheld Presser's conviction. The Court cited Cruikshank for the proposition that the Second Amendment means only that the federal government may not infringe on the right of states to form their own militias. This meant that the Illinois state law forbidding citizen militias was not unconstitutional. However, in its opinion, the Court in Presser delivered a reading of the Second Amendment that seemed to suggest an absolute right of persons to bear arms: "It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States," and "states cannot … prohibit the people from keeping and bearing arms."
Despite this generous language, the Court refused to incorporate the Second Amendment into the FOURTEENTH AMENDMENT. Under the first section of the Fourteenth Amendment, passed in 1868, states may not abridge the PRIVILEGES AND IMMUNITIES of citizens of the United States. The privileges and immunities of citizens are listed in the Bill of Rights, of which the Second Amendment is part. Presser had argued that states may not, by virtue of the Fourteenth Amendment, abridge the right to bear arms. The Court refused to accept the argument that the right to bear arms is a personal right of the people. According to the Court, "The right to drill or parade with arms, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship."
I will continue with a third comment.
As for private militias today:
Approximately half the states maintain laws regulating private militias. Generally, these laws prohibit the parading and exercising of armed private militias in public, but do not forbid the formation of private militias. In Wyoming, however, state law forbids the very formation of private militias. Under section 19-1-106 of the Wyoming Statutes, "No body of men other than the regularly organized national guard or the troops of the United States shall associate themselves together as a military company or organization, or parade in public with arms without license of the governor." The Wyoming law also prohibits the public funding of private militias. Anyone convicted of violating the provisions of the law is subject to a fine of not more than $1,000, imprisonment of six months, or both, for each offense.
Read more: Second Amendment - Private Militias - Government, Law, Freemen, and Court - JRank Articles https://law.jrank.org/pages/10067/Second-Amendment-PRIVATE-MILITIAS.html#ixzz6q7ogGYVN
According to the Institute for Constitutional Advocacy and Protection of Georgetown Law:
Does the Second Amendment protect private militias?
No. In fact, the Supreme Court decided in 1886—and repeated in 2008—that the Second Amendment “does not prevent the prohibition of private paramilitary organizations.” District of Columbia v. Heller, 554 U.S. 570, 621 (2008) (citing Presser v. Illinois, 116 U.S. 252 (1886)).
Is it legal to act as a private militia in Virginia?
No. All 50 states prohibit private, unauthorized militias and military units from engaging in activities reserved for the state militia, including law enforcement activities. Some, including Virginia, also prohibit paramilitary activity during or in furtherance of a civil disorder. Virginia’s laws are described below:
Virginia Constitution: The Virginia Constitution forbids private military units from operating outside state authority, providing that “the military should be under strict subordination to, and governed by, the civil power.” Va. Const. art. I, § 13.
Finally, as for the claim that Americans use guns in self-defense 500,000 times a year or mote, that is total bullshit, although conservative organizations love to tout the statistic:
"The researchers who look at [Kleck's study] say this is just bad science," Hemenway says. "It's a well-known problem in epidemiology that if something's a rare event, and you just try to ask how many people have done this, you will get incredible overestimates."
In fact, Cook told The Washington Post that the percentage of people who told Kleck they used a gun in self-defense is similar to the percentage of Americans who said they were abducted by aliens. The Post notes that "a more reasonable estimate" of self-defense gun uses equals about 100,000 annually, according to the NCVS data.
Another problem is that there is no consensus on the definition of defensive gun use. Some incidents could involve illegal carrying or possession, or they could amount to aggravated assault, the Rand Corp. writes:
Perceptions about the incident and an individual's role are important because much of the literature relies on self-reports: The respondent must have perceived there to have been a crime (or, in some surveys, a suspected or averted crime) and must consider himself or herself a victim rather than a mutual combatant. Even such stringent definitions, however, may not be sufficient to determine whether the event was lawful, legitimate, or desirable from a social perspective.
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I know you have no desire to be a lawyer, Cervantes. But damn, you'd be good at it.
Then again, you don't have to be a lawyer to argue persuasively. Even in court. So why bother with law school?
My actual opinion is that constitutional jurisprudence is largely bullshit. The justices engage in whatever sophistry will get them to the answer they want. But regardless of that, the Second Amendment is an anachronism that just can't be translated from 1789 to the present. Arguing about what it really means is a pointless distraction, really, but we're stuck with doing it because the SC restricts policy making. I'd rather talk about what makes sense in the present, not what a few white men of property were worried about 250 years ago.
As Thomas Jefferson wrote--I'm no fan of his, but the guy knew a lot, even if he didn't practice what he preached--
"I am not an advocate for frequent changes in laws and Constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."
My dearest Cervantes, you are again conflating local with state militias. These were distinct entities under different legal status. Many states had both existing side by side, serving different purposes.
I know all that precedent, and it's all irrelevant. SCOTUS ruled consistently against incorporation right up until it changed direction, beginning in 1925. That it took another 85 years - McDonald v Chicago (2010) - for them to get around to the 2A just demonstrates how much they loath the intent of the 14A to begin with. But that's not really the issue and arguing rights is merely a distraction from arguing cases, as you just finally pointed out.
On that note, you may notice that I dismissed both Kleck and Lott rather than citing them. Legitimate researchers* have relied on the NCVS for the reasons I named above. By asking first if a person was the victim of a specific list of violent crimes, then addressing resistive measures, it largely suppresses the confounding factors of perception and self-justification to which you refer. The RAND essay you mention specifies those problems as belonging to more "liberal" surveys such as NSPOF and NSDS, contrasting them with the strict methodology of NCVS. The figure I cite comes from NCVS and amounts to 50k-65k DGUs annually. I am unsure why you brought up the absurd 500k figure advocated by Kleck, et. al.
*Such as McDowall & Wiserma (1992), Hemenway & Solnick (2015)
I don't know why you keep saying that I'm conflating the state and local militias. If you read carefully you will see that I am not. And again, yes the court can change its opinions over time. That doesn't mean I have to agree with any particular opinion at any time, not sure what the point is there.
1. Because, my dear fellow, you are conflating the militia clause of the 2A with the national guard. They have no relationship.
2. Of course you needn't agree, but lamenting "over a century of jurisprudence" vis a court who's job is is to overturn precedent is just a hollow argument from authority.
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